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1. The LegislationThe Canadian Plant Breeders' Rights Act, given Royal Assent on June 19, 1990, came into force on August 1, 1990. The legislation makes it possible for plant breeders to legally protect new varieties of plants. Plant varieties, both sexually and asexually reproduced, may be covered under the legislation for a period of up to 18 years. All plant species, except algae, bacteria and fungi, are eligible for protection. The owner of a new variety who receives a 'Grant of Rights' will have exclusive rights over the use of the variety, and will be able to protect his/her new variety from exploitation by others (see Rights of the holder). The intent of the legislation is to stimulate plant breeding in Canada, to provide Canadian producers better access to foreign varieties and to facilitate the protection of Canadian varieties in other countries. 2. The Plant Breeders' Rights Office (PBRO)The Plant Breeders' Rights Office (PBRO) is part of the Canadian Food Inspection Agency (CFIA). The Office functions to secure the rights of plant breeders by granting protection for their new varieties. The Office examines applications to determine whether applicants are entitled to receive a grant of rights. It publishes and distributes plant breeders' rights information via the Plant Varieties Journal (see Plant Varieties Journal), records details of incoming applications and assists the public in obtaining documentation pertaining to a right that has been published. An Advisory Committee has been appointed from various organizations within the agricultural and horticultural sectors (see Appendix II: Advisory Committee Members) to advise the PBRO on the administration of the Act. The Committee assists by providing technical information for the development of regulations and policy. Applications and communications must be completed in either French or English. When requesting an application from the PBRO the applicant should specify the crop kind and preferred language to ensure the appropriate forms are sent. Business with the PBRO should be addressed to: Plant Breeders' Rights Office 3. Who can Apply?The applicant may be the breeder, his/her employer, or the legal representative. The applicant must also be a citizen of, a resident of, or have a registered Office in Canada or a UPOV member country. All applications require a Canadian address to which correspondence from the PBRO may be sent. Applicants resident outside of Canada must appoint an agent (resident in Canada) to submit an application on their behalf. Application made by a legal representative The legal representative includes the breeder's executor, administrator, any assignee or successor in title to the rights. The legal representative must have the unconditional right to apply in his/her name. Documentation must be provided at the time of application to establish that the applicant is the legal representative when the applicant is not the breeder. Documentation must also be provided if the ownership of the variety is assigned to someone else after the application is filed. Such documentation should include the following particulars: (For an example see: Legal Representative Statement/Assignment before the issue of PBR form [pdf format]
Application made through an agent The agent acts on behalf of the applicant or holder of the right. The agent will serve as the contact person for the Plant Breeders' Rights Office. Documentation must be provided establishing that an agent has been properly authorized by an applicant or holder of a right. There are no special qualifications for the agent, although it would be in the interest of the applicant for the agent to have some knowledge of the candidate variety. The PBRO has the authority to refuse recognition of an appointed agent at any time. (For an example see: Authorization of Agent form [pdf format] 4. Criteria Varieties must MeetVarieties that will be protected will have demonstrated that they are:
The criteria used to determine whether a variety is eligible for protection are as follows: The sale of a candidate variety prior to application for protection is restricted. Regulations covering the sale of varieties from prescribed categories prior to applying for protection are as follows:
A candidate plant variety must be measurably different from all other varieties which are known to exist within common knowledge at the time the application was made. Common knowledge includes varieties already being cultivated or exploited for commercial purposes in Canada and those varieties described in a publication that is available to the public. A candidate plant variety must be uniform in that any variation should be predictable to the extent that it can be described by the breeder. Any variations in the uniformity of a variety must be commercially acceptable. A candidate variety must remain true to its description over successive generations. The variety must be stable in its essential characteristics to the degree where further generations of seed or other propagating material exhibit the same characteristics as described in the original description for which rights were granted. 5. The Application ProcessAn application will be officially accepted when a completed application form including attachments and filing fee have been submitted to the PBRO. The date when all items requested have been submitted will determine the effective date of an application. This will be used to determine the priority of applications when two varieties under examination are indistinguishable. The information to be submitted to the PBRO is listed on the PBR application form [pdf format]. These items must be included at the time of application in order for the basic requirements to be met. Some of these requirements are detailed below.
The following items are included on the application form, but are optional and are not required unless the applicant selects them. These items, as detailed below, must be requested at the time the application is filed.
The Commissioner may reject an application, after it has been filed, when:
Prior to rejecting the application, the applicant will be notified and given reasons for the intended rejection. The applicant may request the PBRO to reconsider the rejection by providing further evidence supporting his/her case. For a list of fees and charges required for obtaining a grant of rights, refer to Appendix V. 6. The Examination ProcessThe examination of an application determines whether the candidate variety meets the requirements for distinctness, uniformity and stability (DUS). Please refer to the Guidelines for Conducting PBR Comparative Tests and Trials. Tests and trials outside of Canada Foreign tests and trials may be accepted when they are purchased from Plant Breeders' Rights Offices in UPOV member countries. In such cases it is required that all candidate varieties are tested for at least one year in Canada and grown in comparison to varieties currently in use in Canada. Publication of Variety Description After the site examination and submission of the completed objective description form, comparative photographs and results of tests and trials, a description of the variety is written for publication in the Plant Varieties Journal. Any person who considers that an application under examination should be refused a grant of rights may file an objection, on payment of the prescribed fee. The objection may be made for any incompatibility with the Act or Regulations. An objection to an application must be filed with the PBRO within six months following the date an application, including the description, was published in the Journal. If, at the end of the six month period, there are no valid objections to a published variety description, the variety becomes eligible for a grant of rights. Following examination, an application may be refused grant of rights when the Commissioner:
Before an application is refused, the Commissioner will inform the applicant of the reasons for the refusal. The applicant will have an opportunity to make representations in support of his/her case. Applicants may withdraw their applications at any time prior to a grant of rights. All papers and other material submitted in connection with the application will be returned to the applicant. The examination fee may be refunded where it had been paid prior to withdrawal and the examination had not been requested by the applicant. An application may be deemed abandoned at any time during the application or examination process upon failure of the applicant to proceed with the application within six months after the date of notice of any action by the Commissioner. It may be possible for the application to be reinstated where the application had been deemed abandoned. 7. Grant of RightsGrant of a Plant Breeder's Rights When an application meets all of the criteria for Plant Breeders' Rights, the PBRO will grant rights providing all fees have been paid. A plant breeders' rights certificate will be issued to the applicant. The holder of a plant breeders' right has the exclusive right to:
Any of these acts undertaken by an unauthorized person constitutes an infringement of the holder's rights. Restrictions to the Holders' Rights
Plant Breeders' Rights are granted for a period of up to 18 years, effective from the date of issue of the rights certificate. At any time during this period the holder may surrender the rights on the variety. A plant breeders' right will remain in force so long as the holder of the rights pays the annual fee. The fee must be paid annually on the anniversary of the date the rights were granted. Maintenance of Propagating Material It is the responsibility of the holder of the rights to be able to supply the Commissioner with a sample of propagating material of the variety throughout the term of protection. The Commissioner may request samples of propagating material at any time and the holder must provide the sample within 60 days of the request. The sample of propagating material must exhibit the same characteristics as described in the original variety description at the time when the right was granted. The Commissioner may also request to inspect the facilities used for maintaining the variety. Failure to comply with these requests may result in the revocation of the rights. The Commissioner may revoke rights when it has been determined that the holder:
Before revoking rights, the Commissioner will inform the holder of the intended revocation. The holder will have an opportunity to make representations in support of his/her case. The Commissioner may annul rights when there is sufficient evidence that:
Before a right is annulled, the Commissioner will inform the holder of the intended annulment. The holder will have an opportunity to make representations in support of his/her case. Holders of rights may assign their rights to another person. The PBRO will not become involved in these agreements. However, an assignment of a plant breeders' right is not considered valid by the PBRO unless it is registered by the assignee with the PBRO within 30 days after the assignment occurred. The following particulars should be included in an assignment of rights: the name and address of the previous owner of the variety, the category and denomination of the plant variety, the plant breeders' rights certificate number, a letter of assignment signed by both the holder and the assignee, each in the presence of a witness, and the effective date of the assignment. (for example see: Assignment of Plant Breeders' Rights form [pdf format] A denomination may be changed after a right has been granted where any of the following conditions apply:
Any changes to a denomination requested by the holder will require the payment of a fee. A compulsory licence may be granted to anyone who can demonstrate to the Commissioner that the holder of the right of a particular variety has unreasonably refused to license them. The Commissioner may issue a compulsory licence to ensure that:
The person to whom the compulsory licence is issued will be required to recompense the holder of the right. A compulsory licence is not exclusive and anyone may apply for one. Each application for a compulsory licence will be reviewed on a case by case basis. 8. DocumentationThe PBRO maintains a register of new varieties which have been granted rights. The Register is open for public inspection. The PBRO publishes the Plant Varieties Journal containing information concerning plant breeders' rights. The Journal is distributed on a quarterly basis. The Plant Varieties Journal can be obtained by contacting the Plant Breeders' Rights Office. The Journal provides an opportunity for all interested persons to review the information concerning a variety and to object to the particulars of the published applications/ descriptions if they feel the DUS requirements or other requirements of the Act have not been met. 9. Enforcement and InfringementIt is the responsibility of the holder of the plant breeder's right to bring legal action against any person infringing on his/her rights. Court proceedings may be taken to the appropriate court in the province in which the infringement occurred. 10. OffencesOffences under the Act are outlined below:
A person committing any of these offences is liable on summary conviction to a fine of up to $5000. A person convicted on indictment for an offence may be fined up to $15,000 and/or jailed for up to three years for offences listed in part(a) above, or for up to five years for offences listed in part(b) above. For any of the offences listed, a corporation is liable to a fine of up to $25,000 on summary conviction and to a fine at the discretion of the court on conviction on indictment. 11. International Plant Variety ProtectionThe International Union for the Protection of New Varieties of Plants (UPOV) is an organization concerned with the promotion of international cooperation in the area of plant varietal protection. There are 60 member countries of UPOV, including Canada. Other members are: Albania, Argentina, Australia, Austria, Azerbaijan, Belarus, Belgium, Bolivia, Brazil, Bulgaria, Chile, China, Colombia, Croatia, Czech Republic, Denmark, Ecuador, Estonia, European Community, Finland, France, Germany, Hungary, Ireland, Israel, Italy, Japan, Jordan, Kenya, Kyrgyzstan, Latvia, Lithuania, Mexico, the Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay, Poland, Portugal, Republic of Korea, Republic of Moldova, Romania, Russian Federation, Singapore, Slovakia, Slovenia, South Africa, Spain, Sweden, Switzerland, Trinidad and Tobago, Tunisia, Ukraine, the United Kingdom, the United States, Uruguay and Uzbekistan (see UPOV Website for addresses and contact numbers). Membership in UPOV enables Canadian plant breeders to protect their varieties in member States and gives Canadian producers improved access to protected foreign varieties. A grant of rights is only valid in Canada. To obtain protection in other countries, the applicant must apply separately to the appropriate authority. Applications originally filed in Canada may serve as a basis for claiming priority for an application filed in a UPOV country (see Claiming Priority). |
Appendix I. Categories Eligible for Plant Breeders' RightsPrescribed Categories
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Appendix II. Advisory Committee Members
Appendix III. Variety Naming GuidelinesEvery candidate variety must be identified by a denomination proposed by the applicant and approved by the Commissioner. The denomination must conform to the UPOV Recommendations on Variety Denominations as well as the guidelines outlined below:
Proposed Denomination: A denomination must be proposed at the time of filing the application. This may be a temporary designation or an experimental number. The denomination may be changed at any time prior to the grant of rights by providing written notification to the office. If the variety is registered, or in the process of being registered under the Seeds Act, the Plant Breeders' Rights Office should be provided with written notification of any denomination changes made with the Variety Registration Office. Approved Denomination: A variety denomination will receive final approval by the PBR Office only after it has been published in the Plant Varieties Journal and subjected to a six month objection period. Therefore, to avoid any delays in granting rights, the final denomination should be published at the same time as the variety description in the Plant Varieties Journal. The approved denomination should be considered the final denomination as a change of denomination after the rights have been granted may only be allowed in limited circumstances. UPOV RECOMMENDATIONS ON VARIETY DENOMINATIONS Suitability of Proposed Variety Denominations Recommendation 1: Designations that do not show clearly enough their status of variety denomination are not suitable as generic designations and thus also as variety denominations. This may be the case in particular with designations that are identical or may be confused with other indications, in particular those that are commonly used in trade. Recommendation 2:
Recommendation 3: Designations whose use is to remain free are not suitable as generic designations and thus also as variety denominations. This may be the case in particular with designations which consist exclusively or predominantly of terms in everyday language whose recognition as variety denominations would prevent others from using them when marketing reproductive or propagating material of other varieties. Recommendation 4: Designations whose use may be forbidden in the marketing of propagating material of the variety are not suitable as generic designations and thus also as variety denominations. This may be the case in particular with:
Recommendation 5: Names and abbreviations of international organizations which are excluded by international conventions from use as trademarks or parts of trademarks are not suitable as generic designations and thus also as variety denominations. Recommendation 6: A designation is not suitable as variety denomination on the ground of liability to mislead if there is a risk of it giving rise to misconceptions concerning the characteristics or value of the variety. This may be the case in particular with:
Recommendation 7: A designation is not suitable as a variety denomination on the ground of liability to mislead if there is a risk of it giving rise to misconceptions concerning the identity of the breeder. Recommendation 8:
Recommendation 9: For the purposes of the fourth sentence of Article 13(2) of the Convention, all taxonomic units are considered closely related that belong to the same botanical genus or are contained in the same class in the list below: List of Classes for Variety Denomination Purposes Note: Classes which contain subdivisions of a genus may lead to the existence of a complementary class containing the other subdivisions of the genus concerned (example: Class 9 (Vicia faba) leads to the existence of another class containing the other species of the genus Vicia). * Class 1: Avena, Hordeum, Secale, Triticale, Triticum Class 2: Panicum, Setaria Class 3: Sorghum, Zea Class 4: Agrostis, Alopecurus, Arrhenatherum, Bromus, Cynosurus, Dactylis, Festuca, Lolium, Phalaris, Phleum, Poa, Trisetum Class 5: Brassica oleracea, Brassica chinensis, Brassica pekinensis Class 6: Brassica napus, B. campestris, B. rapa, B. juncea, B. nigra, Sinapis Class 7: Lotus, Medicago, Ornithopus, Onobrychis, Trifolium Class 8: Lupinus albus L., L. angustifolius L., L. luteus L. Class 9: Vicia faba L. Class 10: Beta vulgaris L. var. alba DC., Beta vulgaris L. var. altissima Class 11: Beta vulgaris ssp. vulgaris var. conditiva Alef. (syn.: Beta vulgaris L. var. rubra L.), Beta vulgaris L. var. cicla L., Beta vulgaris L. ssp. vulgaris var. vulgaris Class 12: Lactuca, Valerianella, Cichorium Class 13: Cucumis sativus Class 14: Citrullus, Cucumis melo, Cucurbita Class 15: Anthriscus, Petroselinum Class 16: Daucus, Pastinaca Class 17: Anethum, Carum, Foeniculum Class 18: Bromeliaceae Class 19: Picea, Abies, Pseudotsuga, Pinus, Larix Class 20: Calluna, Erica Class 21: Solanum tuberosum L. Class 22: Nicotiana rustica L., N. tabacum L. Class 23: Helianthus tuberosus Class 24: Helianthus annuus Class 25: Orchidaceae Class 26: Epiphyllum, Rhipsalidopsis, Schlumbergera, Zygocactus Class 27: Proteaceae * The complementary classes have been added by the Office of the Union for the convenience of the reader and are given the numbers 28 to 35. Class 28: Species of Brassica other than (in Class 5 + 6) Brassica oleracea, Brassica chinensis, Brassica pekinensis + Brassica napus, B. campestris, B. rapa, B. juncea, B. nigra, Sinapis Class 29: Species of Lupinus other than (in Class 8) Lupinus albus L., L. angustifolius L., L. luteus L. Class 30: Species of Vicia other than (in Class 9) Vicia faba L. Class 31: Species of Beta + subdivisions of the species Beta vulgaris other than ( in Class 10 +11) Beta vulgaris L. var. alba DC., Beta vulgaris L. var. altissima+ Beta vulgaris ssp. vulgaris var. conditiva Alef. (syn.: Beta vulgaris L. var. rubra L.), Beta vulgaris L. var. cicla L.,Beta vulgaris L. ssp. vulgaris var. vulgaris Class 32: Species of Cucumis other than (in Class 13 + 14) Cucumis sativus + Citrullus, Cucumis melo, Cucurbita Class 33: Species of Solanum other than ( in Class 21) Solanum tuberosum L. Class 34: Species of Nicotiana other than ( in Class 22) Nicotiana rustica L., N. tabacum L. Class 35: Species of Helianthus other than (in Class 23 + 24) Helianthus tuberosus + Helianthus annuus Appendix IV. Sample RequirementsNote: Quantity of seed has been determined based on the relative size and weight of seed. If the crop kind for which a PBR application is being filed is not included in the following list, either determine the quantity of seed based on a crop kind of similar seed size or contact the PBRO for further instruction.
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* not required for varieties that will be asexually reproduced
All reference samples submitted to the PBRO must meet the following requirements:
1. At the time of submitting the sample, the applicant must sign a statement certifying that the reference sample is representative of the variety.
2. The reference samples are legal samples which may be used in the event a holder's right is challenged. The submission of a non-representative sample for a variety could result in the loss of a right.
3. All reference samples originating from outside Canada must be sent via the Canadian agent.
4. The seed sample should be untreated. It is illegal to send treated seed in the mail and seed treatments may cause problems with certain types of laboratory analysis.
5. Samples submitted should be fastened in a tamper-proof manner. The container should
be one of the following types of material:
a) Cotton or polyjute bags (most desirable)
b) Manilla seed envelopes
c) Paper bags (double bagged)
d) Plastic bags (least desirable)
6. Sample bags shall contain an inner and an outer label. The labels should contain the
following information:
a) proposed denomination;
b) crop kind;
c) name of the applicant;
d) signature of the applicant or agent; and,
e) the date the sample was drawn.
The table below lists the fees and charges payable to the Plant Breeders' Rights Office for all purposes of the Act. All fees paid by cheque or money order are to be made payable to "Receiver General for Canada". All funds must be in Canadian dollars. Contact the PBRO regarding payment by VISA and MasterCard.
Item |
Service | Fees/Charges |
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. |
Filing an application Examination of an application Issuance of a Plant Breeders' Rights Certificate Annual Fee Protective Direction Claim for Priority from a preceding application outside of Canada Change of an approved denomination Objecting to an application for Plant Breeders' Rights Reinstatement of an abandoned application Reinstatement of an abandoned application on petition Application for compulsory licence Replacement of a lost/destroyed certificate Public inspection of the Register Copies of documents Purchase of Canadian test results by UPOV member country |
$250.00 $750.00 $500.00 $300.00 $50.00 $50.00 $100.00 $200.00 $100.00 $200.00 $250.00 $50.00 $5.00 $0.50/page $350.00 |
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